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  • Writer's pictureDavid N. Damick

Two Cases You Know Nothing About that Will Affect How Your Doctor Treats Your Family: Part I

The Missouri Supreme Court is deciding two completely different cases that may mean you cannot sue even when everyone knows your medical provider was negligent (Supreme Court Weighs Who and When in Medical Malpractice Suits). The first is a case claiming that medical providers who are employed by the State should have immunity for anything, unless they break a specific law telling them exactly what they should have done; the second is a case where the patient didn’t even know that their surgeon left chunks of wood in their knee until they saw another doctor who told them. We will discuss these cases in two blog posts this week; this post addresses the first case.

The first case is part of a trend in court-made decisions that is eliminating the rights of citizens even where a government employee is grossly negligent, or intentionally violates a patient’s rights. The case originates from the 2020 death of Ronald Scheer at the St. Charles Habilitation Center. A suit filed by his family alleges that workers at the center failed to secure his wheelchair’s pelvic harness, allowing him to slide down and strangle on the restraint. The question has now become whether or not the workers in question, as State employees, are immune from prosecution for their actions.

The first thing to understand when considering this case is that the State of Missouri has given itself “Sovereign Immunity,” based on the ancient idea that “the king can do no wrong,” (Government Immunity: Institute of Justice Missouri State Profile). One might think that this hold-over from the colonial days would have been eliminated long ago, but it was just too sweet a deal and hung around until the Missouri Courts realized it was not right and properly eliminated it in 1978.

But not for long. Within 9 months, the legislature passed a law granting Sovereign Immunity to the State itself, with only two very narrow exceptions (Sovereign Immunity in Missouri: Judicial Abrogation and Legislative Reenactment). Somehow, the Court system that knew that justice required eliminating the immunity for the king, but undermined this entirely by developing a number of new “immunities” for people who work for the State – again without any legislation, just because they felt it was the thing to do. One of these court-made immunities is referred to as “official immunity,” which protects public officials from liability for acts of negligence in the course of their duties. You won’t find it in any law, just in court opinions, but its scope keeps expanding. At this point, under common law doctrine, “official immunity” can protect almost any employee of the state for actions they take in their job, no matter who is hurt or how.

Since the courts made “official immunity” up, it gets more and more complicated as time goes on. For instance, the courts decided that if a state employee violated some “discretionary” duty, they only receive qualified immunity, but their liability is subject to damage caps. They can largely do whatever they want without any responsibility, but if they violate what they called a “ministerial” duty, they could be held responsible. The argument for what is “ministerial” or what is “discretionary” has gone on for decades. But make no mistake about it, the “discretionary” list has grown and has taken over almost everything – rendering the “ministerial” exceptions almost irrelevant in practice.

To put this in real-life terms: what happens when a medical care giver ties down a patient to their bed and the patient dies from that? What about when that same medical care giver fails to tie down a patient who is hallucinating because of pain or medication? That, essentially is what the Missouri Supreme Court has in front of it right now in the case of Ronald Scheer. If there is a regulation that says when a patient must be tied down, and when a patient cannot be tied down, and the medical provider does not listen to the regulation, are they immune no matter what happens or who gets hurt? Or are they responsible?

The State always argues that there is no “ministerial” violation unless there is a specific law that sets out in tiny detail what to do. Obviously, there never will be a law that tells a medical provider (or almost any employee) exactly how to do their job. But the modern courts, and particularly the federal courts, love giving the government “immunity” and so the list of things that are discretionary (i.e., not specifically laid-out and therefore covered by immunity) keeps going and growing. Did the government know their employee would assault you while you were being treated by them? Discretionary. Did that government employee knock you down the stairs because they were in a hurry, and if they were in a hurry for their work, should they therefore be immune from liability for your injuries? As a citizen and voter, perhaps you can tell me. But the official immunity issue is once again before the Supreme Court, and while this is a core value issue for all Missourians, we won’t know the rule is until they tell us.

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